Citation Nr: 1022793
Decision Date: 06/21/10 Archive Date: 07/01/10
DOCKET NO. 07-33 888 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Whether new and material evidence has been received to reopen
a claim for service connection for posttraumatic stress
disorder (PTSD) secondary to military sexual assault.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Robert Stanulis, Ph.D.
ATTORNEY FOR THE BOARD
W.T. Snyder, Counsel
INTRODUCTION
The Veteran served on active duty in the U.S. Army from
August 1989 to October 1989, and in the U.S. Navy from
December 1989 to December 1993. Following his separation
from active service he was a member of the Oregon Army
National Guard.
This appeal to the Board of Veterans' Appeals (Board) arose
from an April 2005 rating decision by the Regional Office
(RO) of the Department of Veterans Affairs (VA) in Seattle,
Washington, which determined new and material evidence was
not received to reopen the claim. The RO in Portland,
Oregon, certified the case to the Board. The statement of
the case was issued by the Portland RO, and it notes that an
RO decision review officer determined new and material
evidence was received, reopened the claim, and denied it on
the merits.
A Travel Board hearing convened in February 2010 before the
undersigned Veterans Law Judge. The Veteran did not attend
due to his incarceration. His representative and evaluating
psychologist were in attendance. A transcript of the hearing
testimony is associated with the claims file. The
undersigned held the record of the hearing open for
submission of additional evidence. No additional evidence
was received.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the Veteran
if further action is required.
REMAND
In Patton v. West, 12 Vet. App. 272, 278 (1999), the United
States Court of Appeals for Veterans Claims (Court) pointed
out that there are special evidentiary procedures for PTSD
claims based on personal assault contained in VA Adjudication
Manual M21-1, Part III, para. 5.14c (February 20, 1996). In
personal assault cases, more particularized requirements are
established regarding the development of "alternative
sources" of information as service records "may be devoid of
evidence because many victims of personal assault, especially
sexual assault and domestic violence, do not file official
reports either with military or civilian authorities." Id.,
Part III, para. 5.14c(5).
With respect to personal assaults, 38 C.F.R. § 3.304(f) was
amended in March 2002, to add the following:
If a PTSD claim is based on in-service personal assault,
evidence from sources other than the Veteran's service
records may corroborate the Veteran's account of the
stressor incident. Examples of such evidence include,
but are not limited to: records from law enforcement
authorities, rape crisis centers, mental health
counseling centers, hospitals, or physicians; pregnancy
tests or tests for sexually transmitted diseases; and
statements from family members, roommates, fellow
service members, or clergy. Evidence of behavior
changes following the claimed assault is one type of
relevant evidence that may be found in these sources.
Examples of behavior changes that may constitute
credible evidence of the stressor include, but are not
limited to: a request for a transfer to another military
duty assignment; deterioration in work performance;
substance abuse; episodes of depression, panic attacks,
or anxiety without an identifiable cause; or unexplained
economic or social behavior changes. VA will not deny a
PTSD claim that is based on in-service personal assault
without first advising the claimant that evidence from
sources other than the Veteran's service records or
evidence of behavior changes may constitute credible
supporting evidence of the stressor and allowing him or
her the opportunity to furnish this type of evidence or
advise VA of potential sources of such evidence. VA may
submit any evidence that it receives to an appropriate
medical or mental health professional for an opinion as
to whether it indicates that a personal assault
occurred.
38 C.F.R. § 3.304(f)(3) (emphasis added).
The above information should be included in the pre-decision
notice required by the Veterans Claims Assistance Act of 2000
(VCAA), 38 U.S.C.A. § 5100 et seq. (West 2002).
In remanding this case, the Board acknowledges that the
Veteran was provided notice under 38 C.F.R. § 3.304(f)(3)
during the course of a prior claim of entitlement to service
connection for posttraumatic stress disorder, however, prior
notice cannot be bootstrapped to find that the appellant has
been provided notice with respect to his claim to reopen.
Accordingly, the case is REMANDED for the following action:
1. Please send the Veteran the notice
required by 38 C.F.R. § 3.303(f)(3), as
well as notice why his prior claim was
denied and what evidence is needed to
reopen it. In accordance with the cited
regulation the notice must particularly
inform the Veteran that alternative
evidence refers not to his personal
recollections and assertions, but instead
to evidence that independently helps to
corroborate those recollections and
assertions.
2. Thereafter, the AMC/RO must review the
claims file and ensure that the foregoing
development actions, as well as any other
development that may be in order, has been
conducted and completed in full.
3. Then review the Veteran's claim de novo
in light of the additional evidence
obtained. If the claim is not granted to
his satisfaction, send him and his
representative a supplemental statement of
the case and give them an opportunity to
respond to it before returning the file to
the Board for further appellate
consideration.
The case should thereafter be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The Veteran need take no action unless
otherwise notified. VA will notify him if further action is
required on his part. He has the right to submit additional
evidence and argument on the matter or matters the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
_________________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2009).